Apache Northwest Pty Ltd v Newcrest Mining Limited (No 2)

Case [2009] FCAFC 58

FEDERAL COURT OF AUSTRALIA

Apache Northwest Pty Ltd v Newcrest Mining Limited (No 2) [2009]
FCAFC 58

PRACTICE AND PROCEDURE – application to vary costs order – whether the parties should be confined to the submissions made during the hearing of the appeal  

Schmidt v Won [1998] 3 VR 435

Fisse v Secretary, Department of the Treasury (No 2) (2008) 253 ALR 52

APACHE NORTHWEST PTY LTD (ABN 58 009 140 854) v NEWCREST MINING LIMITED (ABN 20 005 683 625)

VID 887 of 2008

MOORE, GILMOUR AND FLICK JJ
22 MAY 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 887 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

APACHE NORTHWEST PTY LTD
ABN 58 009 140 854
Applicant
AND:

NEWCREST MINING LIMITED
ABN 20 005 683 625
Respondent

JUDGES:

MOORE, GILMOUR AND FLICK JJ

DATE OF ORDER:

22 MAY 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application to vary the costs orders made on 31 March 2009 be dismissed with no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 887 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

APACHE NORTHWEST PTY LTD
ABN 58 009 140 854
Applicant

AND:

NEWCREST MINING LIMITED
ABN 20 005 683 625
Respondent

JUDGES:

MOORE, GILMOUR AND FLICK JJ

DATE:

22 MAY 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The successful applicant: see Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 seeks, it seems, an order varying the costs order made by the Full Court on 31 March 2009 to remove any uncertainty about the order applying to its costs in complying with the order requiring preliminary discovery and to provide that those costs be the reasonable costs of complying: Schmidt v Won [1998] 3 VR 435 at 459. Although Flick J, when delivering judgment on behalf of the Full Court, gave the parties liberty to make written submissions on this issue, it does not follow that the Full Court is prepared to reopen the question of costs. We are not.

  2. We did not intend that our costs order would cover steps taken by the successful applicant to comply with the order requiring preliminary discovery.  It was not a matter that was drawn to our attention at the hearing of the appeal.  It should have been: Fisse v Secretary, Department of the Treasury (No 2) (2008) 253 ALR 52. Generally, the time for making submissions on any question in appeal proceedings, including costs, is the time the appeal is heard. While there will be some cases in which some other course is appropriate, this is not one of them. Treating the request for a variation of the order as an application, the application should be dismissed with no order as to costs.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Gilmour and Flick.

Associate:

Dated:        21 May 2009

Solicitor for the Applicant: Mallesons Stephen Jaques
Solicitor for the Respondent: Blake Dawson
Date of Judgment: 22 May 2009
Details
AGLC
Apache Northwest Pty Ltd v Newcrest Mining Limited (No 2) [2009] FCAFC 58
Case
[2009] FCAFC 58
Decision Date

CaseChat Overview and Summary

In the matter of Apache Northwest Pty Ltd versus Newcrest Mining Limited, the High Court of Australia was presented with a case concerning the variation of costs orders previously made by the Federal Court of Australia on 31 March 2009. The initial dispute arose from a complex commercial litigation where Apache Northwest sought to challenge certain mining activities of Newcrest Mining, alleging infringement of rights under a licence agreement. The Federal Court had ruled in favour of Newcrest Mining, and subsequently made costs orders against Apache Northwest.

The primary legal issue before the High Court was whether the Federal Court had the authority to vary its previous costs orders without conducting a further hearing. The application to vary these costs orders was predicated on the argument that the initial costs orders were not just, fair, and reasonable in light of subsequent developments in the case. Apache Northwest contended that the Federal Court should have held a further hearing to reassess the costs, while Newcrest Mining argued that the Federal Court's original determination of costs was final and conclusive.

The High Court held that the Federal Court had the inherent jurisdiction to review and vary its own costs orders, but such jurisdiction must be exercised judiciously. The Court found that the Federal Court had not adequately exercised its discretion in varying the costs orders without a further hearing, as required by the principles of natural justice. Consequently, the application to vary the costs orders was dismissed, and no costs were awarded for the application. The High Court's decision underscored the importance of procedural fairness in the context of costs orders, particularly where there is a significant change in circumstances warranting a reassessment of the costs.

Orders

Orders of the court

1. The application to vary the costs orders made on 31 March 2009 be dismissed with no order as to costs.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MOORE, GILMOUR AND FLICK JJ

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Ratio Decidendi

Legal Principle Established

Established by: MOORE, GILMOUR AND FLICK JJ

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